The presumption under Section 139 of the N.I. Act regarding the issuance of a cheque remains unless rebutted by the accused, and failure to provide any evidence leads to conviction.

ORDER :

(SHIVASHANKAR AMARANNAVAR, J.)

This Criminal Revision Petition is directed against the judgment dated 29.12.2021 passed in Crl.A.No.25016/2021 by the LVII Additional City Civil and Sessions Judge, Bengaluru wherein conviction of the petitioner by judgment dated 07.01.2024 passed in C.C.No.50077/2017 by the XXXIV Additional Chief Metropolitan Magistrate, Bengaluru for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I Act” for brevity) has been affirmed.

2. Heard learned counsel for the petitioner and learned counsel for the respondent.

3. The case of the respondent –complainant before the trial Court is that the petitioner –accused is her friend and she has approached for financial help for her domestic purpose and promised to repay the same within 06 months. The complainant has lent amount of Rs.13,50,000/- (rupees Thirteen Lakhs Fifty Thousand only) to the petitioner –accused on 07.01.2016. The accused has issued post dated cheque bearing No.649814 dated 21.06.2016 for Rs.13,50,000/- (rupees Thirteen Lakhs Fifty Thousand only) drawn on ING Vysya Bank Ltd., Banashankari Branch, Bengaluru. The complainant presented the said cheque and it came to be dishonoured for a reason “funds insufficient” on 23.06.2016. The complainant got issued demand notice dated 04.07.2016 though RPAD and it has been served on the petitioner – accused on 08.07.2016. The petitioner –accused did not pay the cheque amount within 15 days. Therefore, the respondent –complainant has initiated proceedings against the petitioner –accused for offence punishable under Section 138 of the N.I Act.

4. The respondent –complainant has been examined himself as P.W.1 and got marked documents as Ex.P1 to P5. The statement of the accused has been recorded under Section 313 of Cr.P.C. The petitioner – accused has not lead any defence evidence. The trial Court after hearing arguments on both side and appreciating evidence on record has convicted the petitioner –accused for the offence punishable under Section 138 of the N.I Act and sentenced to pay fine of Rs.16,50,000/- (rupees Sixteen Lakhs Fifty Thousand only) and in default to undergo simple imprisonment for a period of 03 months. The said judgment of conviction has been challenged by the petitioner before the Sessions Court in Crl.A.No.25016/2021. The said appeal came to be dismissed on merits and confirmed the judgment of conviction passed by the trial Court.

5. Learned counsel for the petitioner would contend that there are no transactions between the petitioner and respondent. Two cheques are given by the petitioner and her sister as security for saree purchase transaction by her mother from the complainant and said cheques have been misused by the respondent – complainant. He further submits that P.W.1 has admitted in her cross examination that there was transaction between mother of the petitioner and the respondent – complainant. That itself establish the defence of the petitioner –accused. He further submits that there is no capacity to the respondent –complainant to lend huge money of Rs.13,50,000/- (rupees Thirteen Lakhs Fifty Thousand only). Without considering all these aspects, learned Magistrate has erred in convicting the petitioner – accused for offence punishable under Section 138 of the N.I Act and the Appellate Court has failed to re – appreciate the evidence on record and affirmed the judgment of conviction passed by the trial Court. With these, he prays to allow the Criminal Revision Petition.

6. Having heard learned counsels, this Court has perused impugned judgments and trial Court records.

7. It is specific case of the res